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Update on advance care directives

Advance care directives, also known as living wills or advance care planning, enable a person over the age of 18, who is mentally competent, to express their wishes in relation to future medical care and treatment.

The common law in Australia recognises two relevant but in some cases conflicting interests:

a competent adult's right of autonomy or self-determination: the right to control his or her own body; and

the interest of the State in protecting and preserving the lives and health of its citizens.

Legislation and Guidelines

Unfortunately, legislation dealing with advance care directives is not uniform in Australia. In dealing with advance care directives, you must have regard to the relevant legislation in your jurisdiction, including but not limited to the following.

In September 2011 the Clinical, Technical and Ethical Principal Committee of the Australian Health Ministers' Advisory Council released A National Framework for Advance Care Directives which is a useful resource.

Cases

In addition to the legislation, there have been a number of key cases, including:

Hunter and New England Area Health Service v A (by his Tutor) (2009) 74 NSWLR 88;

Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84;

Australian Capital Territory v JT [2009] ACTSC 105

H Ltd v J (2010) 107 SASR 352.

Hunter and New England Area Health Service v A

This case involved a patient Mr A, who was a Jehovah's witness, who attended a solicitor Mr N and appointed an enduring guardian.

In relation to dialysis, Mr A ticked "I refuse".

His Honour, McDougall J concluded that the direction represented a considered decision made by Mr A, and that when Mr A made that decision (and, to the extent that it may be relevant, when he was admitted to hospital), Mr A was in law capable of making the decision to refuse dialysis. The hospital was entitled to the declaration sought, that is, that the document was a valid "advance care directive" given by Mr A, and that the hospital would be justified in complying with his wishes as expressed in that directive.

In that case, His Honour gave a summary of the relevant principles with advance care decisions (whilst acknowledging that they will not apply in every conceivable circumstance):

except in the case of emergency, where it is not practicable to obtain consent (see para (e) below), it is at common law a battery to administer medical treatment to a person without the person's consent. There may be a qualification if the treatment is necessary to save the life of a viable unborn child;

consent may be express, or in some cases, implied; and whether a person consents to medical treatment is a question of fact in each case;

consent to medical treatment may be given by the person concerned, if that person is a capable adult; by the person's guardian (under an instrument of appointment of an enduring guardian, if in effect; or by a guardian appointed by the Guardianship Tribunal – [now known as the Guardianship Division of the NSW Civil and Administrative Tribunal] - or a court); by the spouse of the person, if the relationship between the person and the spouse is close and continuing and the spouse is not under guardianship; by a person who has the care of the person; or by a close friend or relative of the person.

at common law, next of kin cannot give consent on behalf of the person. However, if they fall into one or other of the categories just listed (and of course they would fall into at least the last) they may do so under the Guardianship Act.

emergency medical treatment that is reasonably necessary in the particular case may be administered to a person without the person's consent if the person's condition is such that it is not possible to obtain his or her consent, if it is not practicable to obtain the consent of someone else authorised to give it, and if the person has not signified that he or she does not wishthe treatment, or treatment of that kind, to be carried out.

a person may make an 'advance care directive': a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive. Again, there may be a qualification if the treatment is necessary to save the life of a viable unborn child.

there is a presumption that an adult is capable of deciding whether to consent to or to refuse medical treatment, However, the presumption is rebuttable. In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on thedecision.

if there is a genuine and reasonable doubt as to the validity of an advance care directive, or as to whether it applies in the situation at hand, a hospital or medical practitioner should apply promptly to the court for its aid. The hospital or medicalpractitioner is justified in acting in accordance with the court's determination as to the validity and operation of the advance care directive.

where there is a genuine and reasonable doubt as to the validity or operation of an advance care directive, and the hospital or medical practitioner applies promptly to the court for relief, the hospital or practitioner is justified, by the emergency principle, in administering the treatment in question until the court gives its decision.

it is not necessary, for there to be a valid advance care directive, that the person giving it should have been informed of the consequences of deciding, in advance, to refuse specified kinds of medical treatment. Nor does it matter that the person's decision is based on religious, social or moral grounds rather than upon (for example) some balancing act of risk and benefit. Indeed, it does not matter if the decision seems to be unsupported by an discernible reason, as long as it was made voluntarily, and in the absence of any vitiating factor such as misrepresentation, by a capable adult.

what appears to be a valid consent given by a capable adult may be ineffective if it does not represent the independent exercise of the person's volition: if, by some means, the person's will has been overborne or the decision is the result of undue influence, or of some other vitiating circumstances.

Brightwater

In Brightwater Care Group (Inc) v Rossiter [2009] WASC 229, the Brightwater Care Group operated a residential aged care facility in Perth for people with disabilities.

Mr Rossiter was a quadriplegic who was mentally competent. He was generally unable to move and was only able to talk through a tracheotomy. He directed his medical service provider to discontinue the provision of nutrition and general hydration, the consequence of which he could die from starvation. He also requested the prescription of analgesics for the purposes of sedation and pain relief as he approached death.

Mr Rossiter was not terminally ill, nor was he dying. However, he had been advised that there was no prospect that his condition would improve, and in some respects, for example his eyesight, his condition was deteriorating.

Western Australia has specific provisions in its Criminal Code which imposes a duty to provide the necessaries of life, however, His Honour Martin CJ concluded that the Criminal Code did not impose upon Brightwater a duty to provide the necessaries of life to Mr Rossiter against his wishes. His Honour held that it is clear that Mr Rossiter had been provided with full information with respect to the consequences of any decision he might make and has the right to determine and direct the extent of the continuing treatment in the sense that treatment cannot and should not be administered against his wishes. If, after the provision of full advice, he repeats his direction to Brightwater that they discontinue the provision of nutrition and hydration to him, Brightwater is under a legal obligation to comply with that direction.

Such a direction is not irrevocable and while the patient retains his capacities, can be revoked by him at any time.

Australian Capital Territory v JT

In the case of Australian Capital Territory v JT [2009] ACTSC 105 JT was a 69 year old man who was found to be chronically psychotic suffering from paranoid schizophrenia characterised by religious obsessions. There had been a psychiatric history dating back many years. His mental state and physical state deteriorated to the extent that he was admitted to Jindalee Aged Care facility in 1993. Following the death of Pope John Paul II in 2005, JT became obsessed with fasting to bring him closer to God.

The refusal to take food led to physical resistance by JT to treatment including naso-gastic intubation. That process, though necessary to sustain JT’s life, clearly causes distress both to him and the staff carrying out the procedure.

The geriatric specialist did not, on balance, recommend artificial feeding largely because the distress that would be caused to JT in applying the necessary restraints to successfully achieve it.

In that case, Higgins CJ of the Supreme Court of the ACT held that JT was not mentally competent to agree to the withdrawal or to refuse to apply medical treatment.

H Ltd v J

H Ltd v J [2010] SASC 176 J was a resident in a high care unit of H Ltd’s facility. J was born in 1936, who suffered from post polio syndrome and Type I diabetes and regularly took insulin to control her diabetic condition. Without regular doses of insulin J will lapse into a diabetic coma. J’s health deteriorated greatly. J decided to end her life by ceasing to take any food, water and insulin.

This case is interesting because the court held that an individual merely speeding “the natural and inevitable part of life known as death” by refusing food and water was not committing suicide. Further, the operator of the residential care facility does not enter into a suicide pact with, and does not aid and abet suicide of J within the meaning of those terms in section 13A of the Criminal Law Consolidation Act 1935.

Further, the Court reviewed the Aged Care Act 1997 (Cth) and the Quality of Care Principles and held that an approved provider does not have a responsibility to provide nutrition or hydration where a resident voluntarily and rationally directs the provider not to provide the services.

The Court held that J had a common law right to refuse food, water and medical treatment.

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